So You Want to File a Restraining Order Against a Drone

Features Editor

February 25, 2013 // 11:40 AM EST

Not that you bristle at the thought of all drones. Maybe you don't necessarily mind the prospect of a cafécopter fetching your morning fix, or of small-fry drones fulfilling any number of dull, dirty or dangerous tasks, like spotting your sorry ass on a mountainside, cold and with a broken ankle, after you've gone missing on a hike. You'd just rather police drones not watch your daily goings on ad nauseum and without your consent, and that's cool. Besides, that thing up there has been trailing you for what feels like the past week. If only there were some sort of legal recourse to see the drone buzz off and out of your life for good.

There isn't, at least not yet. But while filing a restraining order against an unmanned aerial system may still sound pretty far fetched, it's apparently conceivable enough--the harrassment spectre of some encroaching future--to already be warranting discussion among federal agencies and privacy advocates.

I first noticed the idea raised as a line item in a petition submitted by the Electronic Privacy Information Center to the Federal Aviation Administration in February 2012. The petition (.pdf), which urged the agency "to conduct a rulemaking" to address the possible threats to privacy and civil liberties posed by the impending deployment of drones in US airspace, was co-signed by over 100 experts and organizations, including the Electronic Frontier Foundation. In addition to looping the public into the domestic drone discussion, EPIC asked of the FAA, the agency should consider, among other things like questions around data retention and the relation between drone operations and privacy rights, the "ability of an individual to obtain a restraining order against a drone vehicle."

That got me thinking: How would that even work? Should it come to it, under what circumstances would such legal action be valid? You can see where this is going: What'd be the bar, the threshold at which, once crossed, you'd be able to say OK, not cool, I want to be sure this thing stays the hell away from me? Three unwanted passes? Two? One? With today's insane imaging specs, what'd be considered too much? Three too many gigabites of footage of you trudging to the office and back, or of your kid walking to school? Two too many? One too many?

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It's all very hard to say. The big problem, EPIC associate litigation counsel Amie Stepanovich tells me, is that most restraining orders must designate a specific flesh-and-blood target. Take Hancock Air National Guard base in upstate New York, which houses a few Predator drones and filed the necessary injunctions to keep peace activists away from "the home, school or workplace" of a specific Hancock commander, Col. Earl A. Evans.

One of the innate qualities of drones, of course, is that they're not only inhuman--they're remotely piloted. Stepanovich reminds me that she's not a criminal law expert, and it's worth noting that the ins and outs of restraining orders shake out differently state by state, so for now it's anyone's guess as to what national or local models for drone-restraint filings, if there's to be such things, are going to look like. But without a human target against which to order a restraint--when a person cannot be connected to the tool, in other words--you can start to imagine how tough it'd be trying to pin any one individual or group on grounds of stalking or harassment.

"It would be incredibly difficult not knowing the operator to have any sort of legal recourse against a machine," Stepanovich says.

So with no person to go after, would your next best course of action be to take out a restraining order against a specific drone? If so, how is criminal law, Stepanovich adds, going to have to modify itself in that regard in order to catch up with technological advances?

That's all to say that there remain far more questions than answers at this point in the game. For its part, the FAA--an airspace safety agency, not a privacy rights board--has responded to EPIC's petition by promising to make good on the requested public rulemakings. You can read the response from Kathryn Thomson, FAA chief counsel, here (.pdf).

Again, we're not there yet. The prospect of police drones trailing your movements for days on end is maybe just starting to come into focus, though it's albeit still a scenario that's a ways off. Stepanovich has not yet heard of a civilian threatening to file a restraining order against a particularly pester-y drone--or its operator.

Which brings us back to the mountainside, where you're shivering and your ankle is crumpled and you're sure you're just going to perish right there on the edge. To think, what if you've followed the go-after-the-tool route and taken recourse against a specific drone? Is it a stretch to think the only search and rescue drone on hand to help authorities find you would just happen to be the offending drone?

"That I see maybe being a bit difficult to comprehend," Stepanovich admits, saying she'd hope there'd be more drones on hand to help you out. "Though it would be a bad situation to be in."